Whether the attorney's fees may be included in the costs of lawsuit in the case of an application for provisional seizure or provisional disposition order filed without pleading or examination (negative); and even if the appeal is withdrawn before the date of trial or the date of examination in the appellate court of the case of an application for provisional seizure or provisional disposition order, the attorney's fees shall be included in the costs of lawsuit.

Rule 3(2) of the Rules on the Inclusion of Litigation Costs in Attorney Fees

Supreme Court Order 2010Ma181 Decided May 25, 2010

Seoul High Court Decision 200Na14447 decided May 2, 200

Respondent

Seoul High Court Order 2015Kao-33 dated June 17, 2015

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. Article 3(2) of the Rules on the Inclusion of Costs of Trial by Attorney Fees (hereinafter referred to as the “Rules on the Fees of Attorney Fees”) provides that “The fees of the attorney to be included in the costs of trial in the case of a request for provisional attachment, provisional injunction order, objection against such order or revocation shall be 1/2 of the amount calculated according to the standards of paragraph 1, depending on the value of the preserved right: Provided, That in the case of a request for provisional attachment order, it shall be limited to the case of pleading or examination.”

In the case of an application for provisional attachment or provisional disposition order, the attorney’s fees shall not be included in the litigation costs pursuant to the interpretation of the proviso to Article 3(2) of the Rules on Attorney’s Fees (see Supreme Court Order 2010Ma181, May 25, 2010). However, once the examination of a case of an application for provisional attachment or provisional disposition order is based on a major structure through pleading or examination at the stage of the first instance trial, even if the case was concluded due to the withdrawal of an appellant’s appeal before the pleadings or examination at the appellate trial, if the appellant appointed the attorney before the date of appeal and the attorney submitted a reply, etc. on the grounds for appeal, the attorney’s fees paid by the other party shall be included in the litigation costs in accordance with Article 3(2) of the Rules on Attorney Fees.

2. According to the proviso of Article 3(2) of the Rules on Attorney Fees, the court below determined that the attorney fees in the case of a complaint for a provisional disposition may be included in the litigation costs only after the pleading or examination was conducted in the case of a petition for a provisional disposition order. However, since the case was completed without undergoing an examination in the case of a complaint for a principal case, the attorney fees in the case

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, ① the respondent filed a provisional injunction against the applicant on September 30, 2014 by filing an application with the Seoul Eastern District Court No. 2014Kahap835, and filed an immediate appeal with Seoul High Court No. 2014Ra1127 (hereinafter “this case”). ② The appellate court designated the date of examination on November 10, 2014 as the date of examination and sent a writ of summons to the applicant on December 11, 2014; ③ the applicant submitted a letter of delegation of the lawsuit to the appellate court on November 12, 2014; ④ the respondent submitted a written answer to the grounds for appeal on November 24, 2014; ④ the respondent submitted a written answer to the appellate court on December 24, 2014; ⑤ the fact that the appellant was present at the appellate court on December 24, 2014; and ⑤ the fact that the case was withdrawn on the date of the appeal and the respondent was present at the appellate court on December 24, 2014.

Examining these facts in light of the legal principles as seen earlier, even if the first instance court did not examine the case on the merits of this case in the appellate court, if the petitioner appointed an attorney in the case on the merits of this case and the attorney submitted a written response to the grounds for appeal, the attorney’s fees paid by the petitioner shall be deemed to be included in the litigation cost pursuant to Article 3(2) of the Attorney’s Fees Rules.

Therefore, the court below erred by misapprehending the legal principles as to inclusion of attorney fees in the case of applying for provisional disposition order in the litigation costs, thereby affecting the conclusion of the judgment.

4. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)